Interpreters for the deaf revisited

APA Practice looks at the issue in light of updated guidance about the Americans with Disabilities Act

By Legal & Regulatory Affairs staff

April 26, 2012—The most common question our staff attorneys receive regarding the Americans with Disabilities Act (ADA) is whether psychologists should obtain and pay for the cost of an interpreter for a deaf patient. In the past, we have recommended that, in most cases, a psychologist should do so.

A March 2011 update to ADA guidance for small businesses by the Department of Justice provides further guidance on a small business’s responsibility to provide sign language or other interpreters for deaf clients, as well as guidance on other ADA compliance issues. The guidance suggests that psychologists might now be able to argue that providing an interpreter is an undue financial burden.

However, we continue to recommend that in most circumstances, psychologists should still provide an interpreter because the undue burden would be hard to prove under the new guidance, and the cost is generally outweighed by the risk of an ADA complaint against the psychologist.

It is a business's responsibility to provide a sign language, oral interpreter, or VRI [video remote interpreting] service unless doing so in a particular situation would result in an undue burden, which means significant difficulty or expense. A business's overall resources determine (rather than a comparison to the fees paid by the customer needing the interpreter) what constitutes an undue burden. If a specific communications method would be an undue burden, a business must provide an effective alternative if there is one. [Our emphasis added]

In other words, comparing the cost of an interpreter – typically around $100 - $120 for a two hour minimum – to the potential reimbursement for that one patient is not sufficient to prove undue burden. The cost of the interpreter has to be weighed against your practice’s overall financial resources. For example, a practitioner with $100,000 in annual income likely would find it difficult to prove that several hundred dollars to cover the costs of an interpreter for a few psychotherapy sessions posed an undue financial burden.

The frequency with which the situation occurs should also be taken into consideration. A psychologist who has one deaf client every few years would have a difficult time establishing an argument for undue burden. In the rare case where a psychologist has more than one deaf client regularly, he/she might consider arguing that providing interpreters is unduly burdensome.

Finally, it is important to recognize that there are advocacy groups and lawyers who aggressively pursue ADA claims. “While psychologists can make the argument that paying for an interpreter constitutes an unfair burden, they should consider the risks,” says APA Insurance Trust Risk Management Consultant Eric A. Harris, JD, EdD. “Making the argument could mean going to federal court and spending thousands of dollars to litigate a case that the psychologist has a significant chance of losing.”

For more information, contact the Legal and Regulatory Affairs department by email or at (202) 336-5886.

Please note: Legal issues are complex and highly fact specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time and vary by jurisdiction. The information in this article does not constitute legal advice and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.